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Mike Bryant
Mike Bryant
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Pharmaceutical Attorney Likes Preemption: Shocking.

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In a blog this week , Bert Rein, a founding partner of Wiley Rein, LLP and an attorney representing Wyeth in the pending Wyeth v. Levine appeal in the Supreme Court came out with the rally cry for preemption. Preemption has been a hot topic here at the Injuryboard, as many of us have discussed the way the Bush administration used federal laws to steal the rights of the average consumer. The whole post is interesting because it is written as much as a preaching tor his clients as anything else. Now, there’s nothing wrong with writing to attract more clients, but seems like you should at least be upfront about it. His three arguments are:

1) There needs to be a rational debate on the issue. Which seems contrary to the whole tenet of his position. This isn’t a rational argument, it’s a attack on plaintiff attorneys, a call to restrict people’s rights and clearly just plain old salesmanship. Here he points out that we should be swayed by those stories of the injured. I’m sure that is always the hardest part, ignoring that people are dying, losing their limbs and forced to suffer in such inconvenient ways. It’s very rational to ignore that part of the issue. It is also in this part of his argument that he champions the work of the FDA. Interesting that it’s on the same day that the FDA admitted that they didn’t do their job in overseeing conflict of interests with doctors and drug trials and a short time after FDA officials admitted to being asked by the Bush administration to rewrite federal regulations to specifically preempt state laws.

2) Next he points out that they need to "counteract" plaintiff positions asking to use states laws to force companies to protect consumers. He not only seems to ignore the idea of States rights, but at this time also questions the whole underpinnings of or legal system, which is the jury system. Wow, let’s just throw out the Constitution. Basically, that state legislator and juries are too stupid to understand the very complicated business issues. Seems to me that each group is looking to keep people safe and at the same time is the home of many of these same businesses.

3) Finally, he wants to confuse the whole argument by seemingly arguing that those who are harmed shouldn’t be compensated. Basically, that the law should just make companies remedy the problem. At least he is introducing the idea that there may have been some wrong that was done. It seems to me that both can exist simultaneously and it’s not an either/ or. There has to be a system to composite those that have been injured and at the same time its due to the regulation and these cases that companies are forced , in some cases, to make the necessary changes. Thankfully, many companies do the right thing from the beginning. history is rich with lawsuits over unsafe products and it took court actions to stop them.

When you break all of these augments down, they seem to come from the belief that there really are no unsafe products, that holding those responsible is wrong and tough luck to those that are injured. That really does seem irrational.